TANF-ACF-PI-1997-02 (Final Rules on the National Voter Registration Act of 1993)

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To:

State Agencies Administering the Aid to Families With Dependent Children (AFDC) or the Temporary Assistance for Needy Families TANF) Program and Other Interested Parties.

Subject:

Final Rules on the National Voter Registration Act of 1993.

References:

Section 402(a)(9) of the Social Security Act, 45 CFR 205.50, and the National Voter Registration Act of 1993 (NVRA), Pub. L. 103-31.

Purpose:

This program instruction provides the final rules relative to the subject law. These rules remove certain regulatory restrictions that conflict with the implementation of the NVRA. The preamble discussion includes responses to comments from six parties.

Medicaid and Aid to Families With Dependent Children; Certain Provisions of the National Voter Registration Act of 1993

Agencies:

Administration for Children and Families (ACF), and Health Care Financing Administration (HCFA), HHS

Action:

Final rule.

Summary:

These final rules would remove certain regulatory restrictions that conflict with implementation of the National Voter Registration Act of 1993 (NVRA), Pub. L. 103–31. The NVRA provisions will make it easier for individuals to vote in elections for Federal office.

Background

The NVRA contains three provisions, which will make it easier for individuals to register to vote in elections for Federal office. These include: (1) The simultaneous application for or renewal of drivers licenses and voter registration (the motor voter part of the bill); (2) the adoption and use of a ‘‘mail’’ application form for voter registration; facilitate program improvements and cost efficiency measures.

Response:

Under section 9 of the NVRA the FEC is required to submit reports to Congress to assess the impact of the NVRA each odd-numbered year beginning June 30, 1995. The FEC final rules describe the extensive recordkeeping and reporting requirements that must be maintained by the chief election official of each State. According to the FEC final rules, among other data, reports must include the statewide number of registration applications that were received from all public assistance agencies. While more data might prove useful in the evaluation of program operations, these final rules do not seek or require the compilation of additional information.

We have not adopted the commenters’ suggestion because additional recordkeeping and reporting requirements above those already required by the FEC would negatively impact State welfare agency staff who are providing voter registration services in conjunction with other caseload priorities.

Comment:

The NPRM proposed to continue to apply the bar against registering voters in States that are exempt from the NVRA. Specifically, those States that permit voter registration at polling places (since March 11, 1993 or pursuant to State law enacted on or before that date) or States with no voter registration for any voter in the State with respect to an election for Federal office (since March 11, 1993) are exempt from NVRA requirements and are currently prohibited from conducting voter registration activities at the welfare office level. Three commenters objected to continuing this bar and requested that it be stricken from the final rule. These commenters indicated that no State should be barred from conducting such registration activities and recommended that States exempt from the NVRA be allowed the discretion to determine whether they will offer voter registration by public assistance agencies.

Response:

We agree with the recommendation. Neither the NVRA nor the Social Security Act expressly prohibit an exempt State from assisting clients to register to vote. Accordingly, we believe that States exempt from the NVRA should have the discretion to allow their AFDC/Medicaid population to register to vote so long as the provisions of section 7(a)(5) of the

NVRA are followed. These provisions contain a number of protections to ensure that the registration process will be fair and non-partisan. Specifically, offices shall not: Seek to influence a party preference; display party-affiliated materials; discourage registration; or imply in any way that the availability of services or benefits is dependent upon the applicant’s or recipient’s decision to register or not to register to vote. The final regulation has been modified to expressly prohibit the mailing or distribution of partisan voting information. We added the word ‘‘partisan’’ because we believe it will be helpful to State agencies in implementing their voter registration activities. We also removed redundant references to the NVRA.

Comment:

One commenter objected to employees’ assisting applicants in the completion of voter registration application forms because this would impose a burden unrelated to the employees’ basic work. The commenter also questioned the possibility of an employee influencing the applicant to register for the employee’s choice of political parties.

Response:

We do not agree. The statute requires that public assistance offices make available assistance to AFDC/Medicaid applicants and recipients in registering them to vote. According to section 7(a)(4)(A) of the NVRA, public assistance offices shall make the following services available:

‘‘(i) Distribution of mail voter registration application forms* * *; (ii) Assistance to applicants in completing voter registration application forms, unless the applicant refuses such assistance;’’ and, ‘‘(iii) Acceptance of completed voter registration application forms for transmittal to the appropriate State election official.’’ Therefore, staff must make available to applicants the same level of assistance in completing voter registration application forms as they do in assisting applicants completing AFDC/Medicaid forms. Regarding the commenter’s concern about an employee’s influencing a client to register for one particular party, the statute provides a safeguard. Section 7(a)(5) of the NVRA states that an employee who provides voter registration services shall not ‘‘seek to influence an applicant’s political preference or party registration’’ or ‘‘display any such political preference or party allegiance.’’ We are confident that State welfare agencies have instituted the proper safeguards to prevent abuse.

Comment:

One commmenter was concerned because the HHS regulations are silent as to the obligation to comply with the Voting Rights Language Assistance Act of 1992, in particular section 203. This section enables a community to receive bilingual voting assistance if more than 10,000 voting age citizens in a jurisdiction belong to a single language minority with limited English proficiency and the illiteracy rate of the citizens in the language minority is higher than the national illiteracy rate. It was also suggested that HHS take a greater role in support of bilingual voting assistance.

Response:

We do not feel that it is necessary for DHHS to regulate in this area. The regulatory requirements implementing the Language Assistance Act of 1992 can be found at 28 CFR Part

55. State election officials and AFDC/ Medicaid agency staff should work together to implement these regulatory requirements.

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this rule is consistent with these priorities and principles.

Paperwork Reduction Act

These final regulations do not require any information collection activities, and therefore no approval is necessary under the Paperwork Reduction Act of 1995.

Regulatory Flexibility Act

The Regulatory Flexibility Act (Pub. L. 96–354) requires the Federal government to anticipate and reduce the impact of regulations and paperwork requirements on small businesses. The primary impact of these proposed rules is on State governments and individuals. Therefore, we certify that these rules will not have a significant economic impact on a substantial number of small entities because they affect benefits to individuals and payments to States. Thus, a regulatory flexibility analysis is not required.

Approved:

For the reasons explained in the preamble, part 431 of Chapter IV, Title 42, Code of Federal Regulations, is amended as set forth below:

Part 431—State Organization and General Administration

1. The authority citation for Part 431 continues to read as follows:

Authority: Sec. 1102 of the Social Security Act (42 U.S.C. 1302).

2. Section 431.307 is amended by revising paragraph (a)(2) and (b) and by adding a new paragraph (d) to read as follows:

§ 431.307 Distribution of information materials.

(2) Have no political implications except to the extent required to implement the National Voter Registration Act of 1993 (NVRA) Pub. L. 103–31; for States that are exempt from the requirements of NVRA, voter registration may be a voluntary activity so long as the provisions of section 7(a)(5) of NVRA are observed;

(b) The agency must not distribute materials such as ‘‘holiday’’ greetings, general public announcements, partisan voting information and alien registration notices.

(c) Under NVRA, the agency must distribute voter information and registration materials as specified in NVRA.

For the reasons explained in the preamble, Part 205 of Chapter II, Title 45, Code of Federal Regulations, is amended as set forth below:

(4) All materials sent or distributed to applicants, recipients, or medical vendors, including material enclosed in envelopes containing checks, will be limited to those which are directly related to the administration of the program and will not have political implications except to the extent required to implement the National Voter Registration Act of 1993 (NVRA),

Pub. L. 103–31. Under this requirement:

(i) Specifically excluded from mailing or distribution are materials such as ‘‘holiday’’ greetings, general public announcements, alien registration notices, and partisan voting information.

(iv) Under NVRA, the agency must distribute voter information and registration materials as specified in NVRA.

(b) Voluntary voter registration activities. For States that are exempt from the requirements of NVRA, voter registration may be a voluntary activity so long as the provisions of section